IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MP(M) No. 2628 of 2024 Decided on: 03.01.2025 ____________________________________________________ Pappu ……….. petitioner Versus State of Himachal Pradesh ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Sangram Singh Chandel and Mr. Prikshit Rathore, Advocates. For the respondent : Mr. B.N. Sharma, Additional Advocate General. : ASI Naresh Kumar, IO, PS Barotiwala, H.P. is present in person. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present bail petition has been filed under Section 483 of the BNSS for grant of bail, in FIR No.76 of 2023, dated 06.05.2023, registered at Police Station, Barotiwala, District Solan H.P., under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. I have heard learned counsel for the parties. Perused the record and the status report. 3. Admittedly in the case at hand, FIR was lodged on 06.05.2023 and the bail petitioner has been in custody since 06.05.2023. Challan in the case at hand was filed on 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 27.06.2023. Thereafter, the matter was for the first time listed for recording of prosecution evidence on 23.01.2024. Subsequent to the aforesaid date, for recording of prosecution evidence, the matter was listed on 23.05.2024, 24.05.2024, 25.05.2024. 05.08.2024, 07.08.2024, 06.11.2024 and 01.01.2025 and now the case has been listed on 09.05.2025. Total witnesses to be examined in the case at hand are twenty and only seven witnesses have been examined. 4. In the aforesaid facts and attending circumstances, relief has been sought by the petitioner on the ground of delay in trial. As per the learned counsel appearing on behalf of the bail petitioner, chances of conclusion of trial against the petitioner in the near future does not seem possible. 5. The contraband allegedly recovered from the possession of the petitioner in the present case falls within definition of commercial quantity. Once, it has been held that contraband so recovered falls within the definition of commercial quantity then the material question, which arises for determination before this Court is as to whether the petitioner is entitled for relief as claimed in the present case or not? 6. In this respect, it would be appropriate to refer to judgment of the Hon’ble Apex Court in Mohd. Muslim @ Hussain vs. State (NCT of Delhi) 2023(5) Scale wherein the conditions of Section 37 of NDPS Act has been elaboratory 3 discussed. Relevant extract whereof is being reproduced hereinbelow:- 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bailaltogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail. 21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 7. Other than the aforesaid, it would be refer to judgment of the Hon’ble Apex Court passed in Rabi Prakash vs. The State of Odisha, Special Leave to Appeal (Crl.) No(s). 4 4169 of 2023, decided on 13.07.2023, wherein it has been held that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution, relevant extract whereof is being reproduced hereinbelow:- “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, general militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1) (b) (ii) of the NDPS Act”. 8. In the status report filed, an apprehension has been expressed with respect to the permanent address of the bail petitioner. A perusal of the present petition reflects that the same is supported by an affidavit filed by the son of the present bail petitioner. The son of bail petitioner, is stated to be working in the Municipal Corporation, Baddi. In order to obviate any fear qua the petitioner not appearing to face trial and in order to ensure his presence at trial, stringent condition can be imposed while granting bail. 9. The applicant is in judicial custody for the last 18 months and the trial has not yet concluded. 10 Judging the facts and circumstances of the present case, in the light of decision of the Hon’ble Apex Court (supra), 5 the applicant cannot be kept in judicial custody for indefinite period. Moreover, keeping in view the slow pace of trial, this Court is of the opinion that the chances of the conclusion of the trial, against the applicant, in near future, are not so bright. 11. Hence, after going through the material available on record and considering the overall facts and circumstances of the case, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the bail application is allowed and it is ordered that the petitioner, The applicant is ordered to be released on bail in Case FIR No. 76 of 2023, dated 06.05.2023, registered at Police Station Barotiwala, District Solan H.P. under Section 20 of the NDPS Act, on his furnishing personal bail bonds, in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of learned trial Court. This bail order is subject, however, to the following conditions:- (i). Petitioner shall attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (ii) Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever; (iii) Petitioner will not leave India without prior permission of the Court; (iv) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the victim and Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer; 6 (v) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, Email, PAN Card, Bank Account Number, if any; & (vi) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. 12. Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions are violated by the petitioner. 13. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein. 14. The Registry is directed to forward a soft copy of the bail order to the Superintendent, Sub Jail Solan, District Solan, H.P., through email, with a direction to enter the date of grant of bail in the e-prison software. 15. In case, the petitioner is not released within a period of seven days from the date of grant of bail, the Superintendent, Sub Jail Solan, District Solan, H.P., is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent, Sub Jail Solan, District Solan, H.P., is further directed that if the petitioner fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, the said fact be submitted to this Court. 7 16. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, Sub Jail Solan, District Solan, H.P. and the learned trial Court by FASTER. 17. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court. (Bipin Chander Negi) Judge January 03, 2025 tarun Digitally signed by KALYAN SINGH TANTA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 6369e224816150950e4e573e4e34d1a10ba376e1f8f8 ee29dacc0d935a099c06, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= d7f9b938be1296b50deba92fd93c409a194151aefd531 6a9735ca7a14b704bd8, CN=KALYAN SINGH TANTA Reason: I am the author of this document Location: Date: 2025.01.03 19:54:09+05'30' Foxit PDF Reader Version: 2024.3.0 KALYAN SINGH TANTA